Recent years have seen a renewed interest in the Roman context of ancient Judaism generally and Rabbinic Judaism specifically. A proliferation of conferences, articles, edited volumes, and research projects attests to this resurgence.Footnote ¹ These scholarly ventures are part of a trend away from the traditional focus on the political and military confrontation between Judaism and Rome, or on the legal status of Jews in the empire (still fruitful topics), toward new lines of inquiry. Specifically, scholars are increasingly taken with the question of the Romanness of the Jews—especially Rabbinic Jews—who lived in the Roman Empire, and the related question of how the encounter with Roman values, norms, law, and institutions contributed to the formation of Rabbinic Judaism.

Accompanying the renewed interest in the impact of Roman norms and laws on the formation of Rabbinic Judaism is a renewed skepticism. Ishay Rosen-Zvi echoes the consensus view that has informed much graduate training since the 1970s when he writes “scholars have been hard pressed to find explicit traces of Roman law in the Mishnah or in rabbinic literature in general.”Footnote ² Indeed, few scholars of rabbinics would disagree with his conclusion that despite decades of comparative studies “scholarship has yet to show a significant connection between specific Roman laws and mishnaic ones,”Footnote ³ and most would nod in recognition of his citation of Ranan Katzoff's assertion that “not a single Latin legal term seems to have entered the rabbis’ active legal vocabulary.”Footnote ⁴ Rosen-Zvi is representative of a long-standing scholarly consensus that holds that unlike other provincial groups, the rabbis never perceived themselves as Romans, did not identify with the ideals and aims of the government, were not loyalists, and found the trappings of imperial power and above all, Roman law, intolerable.Footnote ⁵ In line with this view, he maintains that although there may be undeliberate influences of Roman law on Mishnaic Law, by and large, the rabbis formed a “stubborn (if latent), antagonistic movement, developing a creative alternative order, on the fringes of the Roman universe,” which served to “reduce the openness to Roman legal models, whether in the context of specific laws or in the composition [i.e., the Mishnah] at large.”Footnote ⁶

There is, however, a logical fallacy in this consensus view. Even if we grant that all or most rabbis in Roman Palestine did not perceive themselves as Romans (a not unreasonable assertion), it does not follow that their antagonism to Rome reduced their openness to Roman legal models. Certainly, as Beth Berkowitz has shown, ancient Jewish sources express an ideological resistance to “imitating the ways of the nations” based on Lev. 18:21, and the rabbis understood this verse as discouraging any open acknowledgment of influence by other legal systems.Footnote ⁷ But we must not be fooled by this rhetoric of estrangement, stubborn antagonism, and binary opposition. Rabbinic rhetoric is not always matched by rabbinic reality. As Katell Berthelot has argued, there were remarkable similarities between the competing self-perceptions of Romans and Rabbinic Jews, similarities that opened channels of interaction, not all of which were as undeliberate as the conventional wisdom would suggest.Footnote ⁸ The reality is therefore much more complicated than the rabbis’ dramatic rhetorical pronouncements of stalwart opposition and deep antagonism would suggest. But to see this requires broadening our criteria for identifying points of interaction between Roman and rabbinic culture.

In other words, scholars have been looking for interaction in all the wrong places. For decades, scholars have scoured rabbinic literature for Latin legal terms, because nothing less than that would be accepted as definitive proof of a substantive link between particular Roman and rabbinic laws. The findings have been modest, leading some to conclude that rabbinic law was basically impervious to Roman law, as noted. But as Orit Malka's brilliant article demonstrates, the search for Latin legal terms is a red herring. First, Roman legal terms and associated vocabulary do appear, but in Hebrew translation or in the form of functional Hebrew equivalents (one thinks of ke'ilu, which functions to create a legal fiction on the Roman model). Second, as important as such shared terminology may be, it pales in comparison to a more important proof of interaction: the integration of Roman legal and philosophical concepts, principles, tropes, and categories that are too extensive and deep to be undeliberate.Footnote ⁹

In her carefully argued study, Malka presents evidence of a clear substantive parallel between a specific second century CE rabbinic law and a Roman legal institution. The law, which disqualifies four kinds of persons from giving testimony (dice-players, usurers, pigeon flyers, and traders in Seventh Year produce), has long defied interpretation. The traditional internalist explanation for this peculiar list, which assumes that the four are disqualified because they fall into the general category of thieves, not only does not account for the idiosyncratic constellation of these four trades among all others but also fails for lack of contemporaneous textual support. Malka presents convincing evidence in support of the claim that the rabbinic list is not indigenous but borrowed from the Roman legal institution of infamia, which was also attached to certain professions and also deprived persons of their eligibility for testimony. More important, she shows that this structural parallel is bolstered by a deeper conceptual parallel, because underlying both the rabbinic and the Roman disqualification is a wider Greco-Roman discourse on self-control (with Plutarch providing a fourfold list parallel to the tannaitic list in substance). Clinching the argument, Malka then points to a terminological parallel: in both legal cultures the rehabilitation of the disqualified individual is described as “a complete return” (the peculiar and singular Hebrew phrase חזרה גמורה representing a literal translation of the Latin term in integrum restitutio). The strength of Malka's case lies in its aggregation of multiple parallel elements: structural, philosophical, substantive, and terminological.

Not only does this beautifully argued article solve a centuries-old riddle in the rabbinic sources, it also shows how the legal writings of a provincial population can shed light on a Roman legal institution. Establishing that disqualification from witnessing is based on a presumed lack of self-control rather than a lack of honesty suggests that the nature and function of witnessing in antiquity was more political and ceremonial than probative. In short, Malka's research is valuable for Roman legal historians who have hitherto failed to exploit the riches of the vast corpus of provincial law represented by the classical rabbinic sources.

The importance of Malka's study for the field of Jewish law, which for decades has held stubbornly to internalist accounts of legal change and development, cannot be understated. There is no longer a question of whether Roman law left a discernible mark on provincial rabbinic legal production. Despite the skeptics, substantive, structural, philosophical, and even terminological parallels between Roman and Jewish law do exist; of this we can be certain. The questions to be pursued are rather: when did intercultural legal interaction occur, how was knowledge of the Roman law and its institutions disseminated, and how was it transformed in the process of its incorporation into Jewish law?